Bezuidenhout and Others v Minister of Agriculture Land Reform and Rural Development and Others (2925/2024) [2024] ZAWCHC 184 (27 June 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

CASE NO: 2925/2024

In the matter between:

JOHANNES JOSHUA BEZUIDENHOUT First Applicant

HERALD BEZUIDENHOUT Second Applicant

JAN BERGH Third Applicant

NUVELD FARMING EMPOWERMENT Fourth Applicant
ENTERPRISE (PTY) LTD

and

MINISTER OF AGRICULTURE, LAND REFORM First Respondent
AND RURAL DEVELOPMENT

CHIEF DIRECTOR: WESTERN CAPE PROVINCIAL Second Respondent
SHARED SERVICE CENTRE, DEPARTMENT OF
AGRICULTURE, LAND REFORM AND RURAL
DEVELOPMENT

DEPUTY DIRECTOR GENERAL: DEPARTMENT OF Third Respondent
AGRICULTURE, LAND REFORM AND RURAL
DEVELOPMENT

LUBABALO MBEKENI Fourth Respondent

HENDRIK BOOYSEN Fifth Respondent

LUCY NDUKU Sixth Respondent

GERSHWIN MORRIES Seventh Respondent

JEANRO MORRIES Eighth Respondent





Before: The Hon. Ms Acting Justice Mahomed
2

Heard: 11 June 2024

Delivered: 27 June 2024

JUDGMENT

MAHOMED, AJ:
1. On 4 March 2024, the Honourable Ms Justice Salie (“Salie, J”) heard an application for a
mandament van spolie brought by the applicants against the first to sixth respondents and
on even date, she made the following order (“the March court order”):
“(i) Applicants’ possession of properties referred to in 12.1 and 12.2 are herewith
declared to be restored ante omnia with immediate effect;

(ii) The first to fourth respondents and the officials of the Department of
Agriculture, Land Reform and Rural Develop ment are interdicted and
restrained from allocating (and implementing such allocation) in respect of any
allocation of any portion of Plateau Farms (being the various portions of the
farms listed in annexure “A” hereto) to any person, pending the finalisat ion of
the review proceedings under case number 6553/2023;

(iii) The applicants’ costs of suit shall be paid by the first to third respondents,
jointly and severally, the one paying the other to be absolved.”
2. The properties referred to in the March court order are the following:
2.1 Farm Dassiesfontein No. 73 Portion 6 (South Dassiesfontein) (“Dassiesfontein”);
and
2.2 Farm Dassiesfontein No. 73 Portion 5 (Portion 1, North Dassiesfontein) (“Dassies
2”).
3. The applicants allege that the first to fourth respondent (“the departmental respondents”)
and the fifth and sixth respondents have not complied with the March court order and that
the first to sixth respondents are all in contempt of the March court order.
4. The departmental respondents are made up of:
3
4.1 The first respondent is the Minister of Agriculture, Land Reform and Rural
Development, Ms Angela Thoko Didiza;
4.2 The second respondent is the Chief Director, Shared Services, Western Cape
Province in the Ministry of Agriculture, Land Reform and Rural Development, Mr
Thokozile Xaso;
4.3 The third respondent is the Deputy Director General of the Department of
Agriculture, Land Reform and Rural Development, Mr Terries Ndove.
4.4 The fourth respondent is the Director r esponsible for land acquisition, Western
Cape Province, in the Ministry of Agriculture, Land Reform and Rural
Development, Mr Lubabalo Mbekeni.
5. Subsequent to the granting of the March court order and on 11 May 2024, the seventh and
eighth respondents (“ the Morries ”) moved onto the property known as Farm
Willemskraal, Portion 1 of the Farm Bronkers Vallei No. 76 title deed number T6[…]
(“Willemskraal”).
6. The applicants contend that the Morries unlawfully dispossessed the applicants of their
peaceful and undisturbed possession of Willemskraal.
7. On 24 May 2024, the applicant’s launched an urgent application in terms of which they
seek the following relief:
“1. Dispensing with the forms and service s provided for in the Uniform Rules of
court and directing that this portion of the application be heard on an urgent
basis in terms of the Rules of court 6(12)(a);

2. A rule nisi is issued calling on the first to sixth respondents to appear in court in
person to show cause, on a date to be determined by this court , why an order in
the following terms should not be granted:

2.1 Declaring that the first to fourth respondents are in contempt of
paragraphs (i) and (ii) of the March court order;
2.2 Declaring that the fifth to six th respondents are in contempt of paragraph
(i) of the March court order;
2.3 Ordering that the first to fourth respondents are sentenced to imprisonment
for such period as this court deems appropriate and/or imposing on them
such other sanction as this court deems appropriate;
4
2.4 Ordering that the fifth to sixth respondents are sentenced to imprisonment
for such period as this court deems appropriate and/or imposing on them
such other sanction as this court may deem appropriate;
2.5 Ordering the first to sixth respondents jointly and severally to pay the costs
of this application on an attorney and client scale, the one paying the other
to be absolved; and
2.6 Granting such further and /or alternative relief as the court deems
appropriate.

3. Ordering the fifth respondent, within one day of the grant of this order to:

3.1 Vacate the house on Dassiesfontein and return possession of the house to
the applicants;
3.2 Remove all animals from Dassiesfontein;
3.3 Vacate Dassiesfontein and restore peaceful and undisturbed possession of
Dassiesfontein to the applicants;

4. Directing the sixth respondents, within one day of the grant of this order to:

4.1 Vacate the house on Dassies 2 and to restore possession of the house to the
applicants;
4.2 Remove all animals including sheep and goats, Dassies 2; and
4.3 Vacate Dassies 2 completely and to restore peaceful and undisturbed
possession of Dassies 2 to the applicants.

5. Ordering the first to fourth respondents within 2 days of the grant of this order,
to take all necessary steps to remove the fifth and sixth respondents from
Dassiesfontein and/or Dassies 2 together with all animals that the fifth and/or
sixth respondents have brought onto Dassiesfontein and/or Dassies 2, and to
restore peaceful and undisturbed possession of Dassiesfontein and/or Dassies 2
to the applicants, in the event that the fifth and/or sixth respondents fail and/or
refuse to restore peaceful and undi sturbed possession of Dassiesfontein and/or
Dassies 2 to the applicants as provided for in paragraphs 3 and 4 above.

6. Ordering that the applicants’ peaceful and un disturbed possession of
Willemskraal is restored with immediate effect.

7. Ordering the s eventh and eighth respondents, within 1 day of the grant of this
order to:

7.1 Vacate the house on Willemskraal and return possession of the house to the
applicants;
7.2 Remove all animals that they have brought onto Willemskraal since 11
May 2024; and
7.3 Vacate Willemskraal completely, and to restore peaceful and undisturbed
possession of Willemskraal to the applicants.

8. Ordering the first to fourth respondents within 2 days of the grant of this order
to take all necessary steps to remove the sevent h and eighth respondents from
Willemskraal together with all animals that the seventh and/or eighth
respondents have brought onto Willemskraal since 11 May 2024, and to restore
peaceful and undisturbed possession of Willemskraal to the applicants, in the
event that the seventh and/or eighth respondents fail and/or refuse to restore
peaceful and undisturbed possession of Willemskraal to the applicants as
provided for in the preceding paragraph.

9. Ordering the first to fourth respondents and any of the othe r respondents that
oppose the relief sought, to pay the costs of this application jointly and
5
severally, the one paying the other to be absolved, on a scale as between
attorney and client.

10. Further and/or alternative relief.”
8. It is clear from the no tice of motion that the applicants seeks a mandement van spolie
order against the Morries and a contempt of court order against the departmental
respondents and the fifth and sixth respondents.
Rule nisi
9. At the outset, I address the relief sought in paragraph 2 of the notice of motion being
couched in the form of a rule nisi.
10. From a procedural point of view, the application for a rule nisi as a first step in the
committal application was a sensible expedient step, especially when it is borne in mind
that the matter was an urgent application.1
11. No rule nisi was issued in this matter as the parties agreed to a timetable for the filing of
their respective papers , which culminated in a court order which I granted on 30 May
2024 which confirmed the timetable.
12. I heard the matter in its entirety where all parties filed their respective papers and heads of
argument, albeit out of time, and all the issues in dispute were fully ventilated by all the
respective parties.
13. As such, the relief which the applicants seek at paragraph 2 of the notice of motion will
not take the form of a rule nisi but rather a final order, for reasons that will become clear
in the judgment.
14. Prior to dealing with the merits of the application, I address two issues that were raised
during the course of the oral argument:

1 Victoria Park Rates Payers Association v Greyvenouw CC & Others [2004] 3 All SA 623 (SE) at para [8] referring to Herbstein
& Van Winsen at 379-380
6
14.1 The c ondonation of the late filing of the departmental respondents answering
affidavit;
14.2 The applicants’ withdrawal of the relief they seek against the depa rtmental
respondents in paragraph 2.1 of the notice of motion insofar as seeking that the
departmental respondents are in contempt of paragraph (ii) of the March court
order.
Condonation by the departmental respondents for the late filing of the answering affidavit
15. On 30 May 2024, the day before this matter was to be argued, I granted a court order
setting out a timetable for the filing of further papers and in terms of which the first to
sixth respondents were to file their answering affidavit by Tuesday, 4 June 2024.
16. The fifth and sixth respondents filed their answering affidavit timeously.
17. The departmental respondents filed their answering affidavit on Friday, 7 June 2024.
18. The effect of this was that the applicants were unable to file their replying a ffidavits
timeously, all of the affidavits including the heads of argument were finally received by
16h00 on Monday, 10 June 2024.
19. In this regard, I requested a condonation application from the departmental respondents.
20. From the founding affidavit, it transpired that:
20.1 The State Attorney took ill on 27 May 2024 and was unable to schedule
consultations with the departmental respondents who all reside in the Beaufort
West area.
20.2 The senior counsel that was previously appointed in this matter was also unable to
assist with this urgent application and the State Attorney had to request another
counsel by way of an urgent deviation on the evening of Monday, 3 June 2024.
7
20.3 Approval was received on Tuesday, 4 June 2024 whereafter consultations were
held with the relevant departmental respondents and a draft set of papers was
furnished to the legal administration official at the Department on 6 June 2024. A
signed affidavit was eventually filed on 7 June 2024.
21. The applicants’ counsel pointed out that:
21.1 In the review application that was brought on 5 April 2024, the Helen Suzman
Foundation brought an application to be admitted as an amicus and the
department’s answering affidavit in that application was due to be filed on 6 June
2024.
21.2 The departmental respondents did not take this application seriously enough and
were more concerned with filing the answering affidavit in the amicus application
in the review timeously rather than this urgent application and were in contempt of
yet another court order.
22. I noted the applicants’ submissions in this regard and will consider th ese for the purpose
of the cost order relating to the condonation application.
23. Notwithstanding the late filing of the departmental respondents answering affidavit and
the late filing of the heads of argument of all the parties that followed, I granted
condonation and the matter proceeded on 11 June 2024.
Applicants’ withdrawal of the relief that the departmental respondents are in contempt of
paragraph (ii) of the March court order as set out in paragraph 2.1 of the notice of motion
24. During the course of the argument, the applicants ’ counsel submitted that they no longer
persist with the relief at paragraph 2.1 of the Notice of Motion insofar as it relates to
paragraph (ii) of the March court order , i.e. they no longer seek a declarator that the
departmental respondents are in contempt of paragraph (ii) of the March court order.
8
25. The basis of the withdrawal of this relief is that it transpired from the departmental
respondents answering affidavit that they did not give their consent to the Morries to
move on to Willemskraal.
26. The applicants’ confusion was caused by the Morries advising the first applicant that the
second and fourth respondents had advised them to move onto Willemskraal. However,
from the Morries’ answering affidavit, they admit that no such consent was ever provi ded
by the departmental respondents.
27. The issue of the costs for this withdrawal by the applicants will be addressed later in the
judgment.
28. I now turn to address the merits of the relief which the applicants seek against the various
respondents:
28.1 That the app licants peaceful and undisturbed possession of Willemskraal be
restored to them ante omnia with immediate effect by the Morries; and
28.2 That the departmental respondents and the fifth and sixth respondents are in
contempt of the March court order.
29. I will first deal with the spoliation relief sought against the Morries.
SPOLIATION RELIEF SOUGHT AGAINST MORRIES
Background facts
30. According to the applicants, the five farms which form part of the Plateau Farms are all
owned by the Department of Agriculture, Land Reform and Rural Development (“the
Department”) and include Dassiesfontein, Dassies 2 and Willemskraal.
31. Since 2017 , the fourth applicant, Nuveld Farming E mpowerment Enterprise (Pty) Ltd
(“Nuveld”) together with the first to third respondents have been in peaceful and
9
undisturbed possessions of Plateau Farms in its entirety which includes Dassiesfontein,
Dassies 2 and Willemskraal.
32. The first, second and third applicants have been actively farming Plateau Farms as Nuveld
with the permission of the Department, pending the outcome of the land reform allocation
application process. In doing so, the applicants have been protecting and preserving the
state's assets and providing quarterly reports to the Department about their activities.
33. The short background provided by the applicants regarding when they came into
possession of Plateau Farms is as follows:
33.1 In 2009, the first to third applicants were all beneficiaries of a government land
distribution project on Plateau Farms, when the farms were allocated to a total of
81 individuals, organised into 11 entities.
33.2 The fifth and sixth respondents were also beneficiaries of this project.
33.3 All the entities were initially given a three -year lease over the different farms that
make up Plateau Farms.
33.4 When the three -year leases came to an end in 2012, all the entities were given a
further five-year lease from 2012 to 2017.
33.5 In May 2018, all the beneficiaries received letters from the Department confirming
that their leases had ended, and that they were required to leave the farm. By this
time, the first to third applicants were the only people still living on the farms, as
all the other beneficiaries were no longer farming on the land.
33.6 The first, second and third ap plicants decided to form Nuveld, to consolidate their
farming activities and to participate in whatever allocation process the Department
decided on for Plateau Farms.
33.7 On 20 November 2017 , the first, second and third applicants wrote to the
Department on behalf of Nuveld, seeking permission to stay on Plateau Farms and
10
to farm the land, pending the decision by the Department as to Plateau Farm s
going forward.
33.8 On 21 November 2017, they received a letter from the Department confirming that
Nuveld could remain on Plateau Farm s. Since then , they have reported to the
Department on their activities on Plateau Farms quarterly as per the Department's
request.
33.9 On 1 November 2019, Nuveld received a letter from the Department confirming
that they had access to all five farms that make up Plateau Farms in order to take
care of the state assets.
33.10 Nuveld also entered into a caretaker agreement with the Department between 1
October 2019 and 31 December 2019 pending the outcome of the application
process for Plateau Farms that had commenced in December 2019.
33.11 On 6 December 2019, the Department advertised in Die Burger and The Courier
that interested parties could apply for the redistribution of Plateau Farms in terms
of the State Land Lease and Disposal Policy. Successful applicants would be
given a 30-year lease over the property.
33.12 Nuveld attended the mandatory site visit on 13 December 2019 as required by the
advertisement. N o other groups or beneficiaries, including the fifth, sixth,
seventh, or eighth respondents, attended the site visit. Nuveld submitted an
application to the Department for the allocation of Plateau Farms on 17 December
2019, before the closing date.
33.13 On 21 January 2020, the District Beneficiary Selection Committe e of the
Department interviewed the first, second and third applicants. One other applicant
was interviewed. Nuveld scored much higher than the other applicant.
33.14 On 21 May 2020, the National Land Acquisition an d Allocation Control
Committee (“NLAACC”) recommended that Nuveld be given a 30-year lease over
11
Plateau Farms. The NLAACC is the final structure that approves allocations for
state land for redistribution in terms of Se ction 11 of the Land Reform Act 3 of
1996 (“ the Land Reform Act ”), acting o n recommendations from the District
Beneficiary Selection Committee and the Provincial Selection Committee , before
the allocation goes to the Chief Director for approval.
33.15 The reasons for the decision to allocate Plateau Farms to Nuveld included the
following:
33.15.1 The applicants have been farming on the land since the acquisition of the
land by the Department;
33.15.2 The applicants took responsibility for the maintenance of the properties;
33.15.3 The applicants contributed to the breeding of the m erino sheep and wool
production;
33.15.4 The applicants have 2 665 merino sheep and are planning to exp and on
that number;
33.15.5 Nuveld registered with Responsible Wool Standards (“RWS”) and
provides wool to BKB, Nuveld's agent, which will auction the wool at a
better price; and
33.15.6 Nuveld is creating 10 permanent jobs that result in 10 households
securing a monthly income.
33.16 Unbeknown to the applicants at the time, on 27 September 2020, the second and
fourth respondents rejected the recommendation that the lease be awarded to
Nuveld. A ccording to the NLAACC recommendation, the power to make the
decision to approve the allocation had been delegated to the second respondent in
terms of section 11 of the Land Reform Act.
12
33.17 The fourth respondent, Mr Lubabalo Mbekeni (“Mr Mbekeni” or “fourth
respondent”), rejected the recommendation to grant the lease to Nuveld and his
reasons for the decision included “complaints” by the fifth and sixth respondents.
34. According to the applicants, they were never given an opportunity to make
representations in this regard and were not notified of Mr Mbekeni’s decision or the
reasons for it. They accidentally became aware of Mr Mbekeni’s decision in 2021 , when
they sought answers as to why the Department was not finalising their lease agreement as
the NLAACC had recommended.
35. Nothing further seems to have happened until 17 February 2023 when first applicant
received a call from Ms de Jager of the Beaufort West District Office of the Department
where she invited the applicants to come to the office on Monday, 20 February 2023, to
meet with Mr Mbekeni and one Mr Freddie Mapona (“Mr Mapona” ), also of the
Department.
36. The applicants attended at that meeting where Mr Mbekeni informed them that he was
there to find a solu tion for Plateau Farms , and advised that the Department had done an
investigation and found that the entire process of allocating the 30 -year lease was illegal,
and that the Department had thus decided to ignore the process. The applicants requested
proof of this but were told by Mr Mbekeni that he could not share this.
37. Mr Mbekeni then requested whether the applicants would agree that Nuveld would get
three portions of Plateau Farms and to agree that Dassiesfontein and Willemskraal would
be given to other beneficiaries. He told them that if they agreed, the Department would
give Nuveld a lease and report to the national office that the issue was resolved.
38. The applicants refused, as no proper process had been followed to decide who should get
the lease. The next day, the first applicant received a call from M s de Jager to confirm
their position in respect of the allocation of the farm. While Mr Mbekeni did not say to
whom he wanted to award Dassiesfontein and Willemskraal, Ms de Jager told them that if
they agreed, Dassiesfontein would go to t he sixth respondent and Willemsk raal would go
13
to the Tyantyi family. The applicants did not ag ree with this and on 5 April 2023 , the
applicants launched the review application.
39. The applicants h eard nothing more about Willemsk raal being allocated to any
beneficiaries.
40. The applicants continued with the farming operations which were very successful and in
2023, Nuveld Farming received the top prize for wool as well as the highest average in
the Beaufort West region.
41. The Plateau Farms have been operating as fully function al sheep and wool farms and is
the sole livelihood of the applicant. Between 21 November 2017 and 17 January 2024 ,
Nuveld as well as its directors had been in peaceful and undisturbed possession of Plateau
Farms, including Dassiesfontein, Dassies 2 and Wi llemskraal. They conducted their
farming operations on Plateau Farms without any disturbance or interference by the
respondents. This is reflected in the quarterly reports to the Department.
42. On 17 January and 7 February 2024 respectively, the fifth and sixth respondents
proceeded to move on to Dassiesfontein and Dassies 2 respectively. This was the basis of
the spoliation application against the first to sixth respondents which culminated in the
March 2024 court order.
POINTS IN LIMINE RAISED BY THE MORRIES
43. The Morries raised three points in limine to the applicants’ application for spoliation
against them:
43.1 That they have been misjoined to the proceedings under this case number;
43.2 That the court lacks jurisdiction on the b asis that the relief sought in this
application is tantamount to an eviction from farmland and therefore falls within
the ambit of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”); and
14
43.3 The Morries at all times had co -possession of Willemskraal and were never fully
displaced of their rights to be there.
44. I deal with each one of these in turn.
Misjoinder
45. The Morries contended that they were not parties to the original spoliation application in
terms of which the March court order was granted.
46. The relief sought against them is completely new relief that was not ventilated during the
previous spoliation application and they are in no way affected by the contempt
application sought against the first to sixth respondents. The relief sought against the
Morries is only in respect of the spoliation application insofar as it pertains to
Willemskraal.
47. During the course of argument, the counsel for the Morries contended that the applicants
failed to bring a formal application to join the Morries to these proceedings and that their
joinder to the contempt application accordingly amounts to a misjoinder.
48. The counsel for the Morries referred to numerous cases2 in respect of this issue of non-
joinder but none of these address the basis upon which a joinder application must be
brought.
49. Rule 10 of the Uniform Rules of Court provides for the joinder of parties and causes of
action.
50. The Supreme Court of Appeal in the case of ABSA Bank Limited v Naude N.O3, the SCA
set out the test for non-joinder in the following terms:
“[10] The test whether there has been non -joinder is whether a party has a direct
and substantial interest in the subject matter of the litigation which may
prejudice the party that has not been joined. In Gordon v Department of

2 Western Bank Ltd v Packery 1977 (3) SA 137 (T); in Re Several Matters on the Urgent Court Roll 2013 (1) SA 549
(GSJ); Rosebank Mall (Pty) Ltd v Craddock Heights (Pty) Ltd 2004 (2) SA 353 (WLD); CUSA v Tao Ying
Metal Industries & Others 2009 (1) BCLR 1 (CC)
3 Unreported judgment (20264/2014) [2015] ZASCA 97 (1 June 2015) at [10]
15
Health, Kwazulu -Natal it was held that if an order or judgment cannot be
sustained without necessarily prejudicing the interest of third parties that had
not been joined, then those third parties have a legal interest in the matter and
must be joined. That is the position here. If the creditors are not joined their
position would be prejudicially affected: A business rescue plan that they had
voted for would be set aside; money that they had anticipated they would
receive for the following ten years to extinguish debts owing to them, would
not be paid; the money that they had received , for a period of thirty months,
would have to be repaid; and according to the adopted business rescue plan
the benefit that concurrent creditors would have received namely a proposed
dividend of 100 per cent of the debts owing to them, might be slashed to a 5,5
per cent dividend if the company is liquidated.”
51. In Judicial Services Commission & Another v Cape Bar Council & Another4, the SCA
held that:
“[12] It has by now become settled law that the joinder of a party is only required as
a matter of necessity – as opposed to a matter of convenience – if that party
has a direct and substantial interest which may be affected prejudicially by the
judgment of the court in the proceedings concerned (see eg Bowring NO v
Vrededorp Properties CC 2007 (5) SA 391 (SCA) para [21]). The mere fact
that a party may h ave an interest in the outcome of the litigation does not
warrant a joinder plea. The right of a party to validly raise the objection that
other parties should have been joined to the proceedings, has thus been held
to be a limited one.”
52. In this case , it is common cause that the relief which the applicants seek against the
Morries is not for contempt of the March court order and since the Morries have no direct
and substantial interest in the outcome of the contempt of court relief, there is no basis, in
law or otherwise, to formally join them t o the application for such contempt relief. Any
application to do so would constitute an irregular step.
53. The issue in this regard is whether citing the Morries in this application was correct or
whether the a pplicants should have launched a separate application against the Morries
for the spoliation relief.
54. The counsel for the Morries argued that since the relief sought against the Morries was
completely different to the relief sought against the first to sixth respondents, that t he
applicants should have brought a separate application against the Morries with a new case
number, and that the Morries object to being a party to this application under this case
number.

4 2013 (1) SA 170 (SCA) at para [12]
16
55. It was put to the counsel for the Morries that if the application for the contempt of the
March court order was brought at the same time as the application for the spoliation,
whether he agreed that, given the similar facts and circumstances in both matters, these
applications would have, in any event been consolidated and heard together as a matter of
convenience.
56. His response was that this may well have happened , b ut that it is still unfair for the
Morries to be included in this application.
57. One of the main reasons was that the judge hearing the spoliation application against the
Morries would be influenced by the March court order and this would prejudice the
Morries.
58. If regard is had to Uniform Rule 11 which addresses c onsolidation of ac tions, i t states
that:
“11. Consolidation of actions:

Where separate actions have been instituted and it appears to the court
convenient to do so, it may upon the application of any party thereto and after
notice to all interested parties, make an order c onsolidating such actions,
whereupon—
(a) the said actions shall proceed as one action;

(b) the provision of rule 10 shall mutatis mutandis apply with regard to the
action so consolidated; and

(c) the court may make any order which to it seems meet with regard to the
further procedure, and may give one judgment disposing of all matters in
dispute in the said actions.”
59. The paramount test in regard to consolidation of actions is convenience for the parties, the
witnesses and mostly, the court5.
60. Consolidation of actions will generally be ordered in order to avoid multiplicity of actions
and attendant costs. Consolidation of actions will not be ordered if there is a possibility of
prejudice being suffered by any party. By prejudice in this context is meant “substantial

5 Rail Commuters Action Group v Transnet 2006 (6) SA 68 (C) at 68B
17
prejudice sufficient to cause the court to refuse a consolidation of action , even though the
balance of convenience would favour it”6.
61. In this case, the facts pertaining to the spoliation application serve a background to the
contempt of court application and, as such, a consolidation of the two applications would
have, in all probability, have been granted.
62. The salient principle in our law is where any alleged or proven irregularity does not cause
any substantial prejudice to the complaining party, the court is entitled to overlook it.
This is so because the court rules are designed to ensure fair play and thereby prevent
injustice, but that is not an end in themselves7.
63. It is the duty of the court to ascertain the true or real issues in dispute. The court looks at
the substance of the dispute and not the form in which it is presented8.
64. In this case, the Morries did not satisfy the court that, by being joined to this application,
that they suffered any kind of substantial prejudice at all that would have caused a court to
refuse consolidation.
65. In light of the aforegoing, I am satisfied that the inclusion of the Morries in this contempt
of court application where separate relief is sought against the Morries is in line with the
legal principles and that the substance trumps the form in this case.
66. In light of the aforegoing, this point in limine raised by the Morries in this regard would
be dismissed.
Lack of jurisdiction of this court

6 Erasmus Superior Court Practice at D1-134; New Zealand Insurance Company Ltd v Stone 1963 (3) SA 63 (C) at
71D-H
7 Minister van Wet en Order v Jacob 1994 (1) SA 944 and Protea Assurance Company Ltd v Vinger 1970 (4) SA
663 (O)
8 Ceramic Industries Ltd t/a Betta Sanitary Ware v National Construction Building and Allied Workers Union &
Others (2) (1997) 18 ILJ 671 (LAC); Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers
Union & Others (1) (1998) 19 ILJ 260 (LAC)
18
67. The second point in limine raised by the Morries is that this court lacks jurisdiction
because the relief it seeks against the Morries is tantamount to an eviction order and that
should have been instituted in the Magistrates Court in terms of ESTA.
68. ESTA is the central legislation that seeks to give effect to section 25 (6) of the
Constitution of the Republic of South Africa , 1996 (“the Constitution ) which provides
that:
“(a) Person or community whose tenure of land is legally insecure as a result of past
racially discriminatory laws or practices is entitled, to the extent provided by an
act of Parliament, either to tenure which is legally secure or to comparable
redress.”
69. In terms of ESTA, one of the main requirements is for the occupier of the farmland to
have the consent of the owner or the person in charge of the land in question.
70. In this case, it is now common cause that the Morries never had the consent of the
Department to occupy Willemskraal in the first place. ESTA therefore has no application
in this matte r and this puts an end to th is second point in limine, which also falls to be
dismissed.
The Morries at all times had co -possession of Willemskraal whenever dispossessed of their
right to be there
71. The Morries contend that they were forcefully removed from Willemskraal but that at all
material times, they were in possession of the keys to the gate and the house on
Willemskraal.
72. Notwithstanding these contentions, the Morries admit that at least fr om 2018, they were
not physically present at Willemskraal and that the applicants were, in fact, in physical
occupation and control of Willemskraal since at least 2018.
73. The Morries also admitted that in the last 5 years , between 2018 until 11 May 2024, they
did nothing to exert any control over the farm at Willemskraal.
19
74. The applicants , in their replying affidavit, placed the facts pertaining to the Morries’
averments tha t they were always in possession of the keys to the house and gate at
Willemskraal, in dispute and , in fact , stated in terms that the Morries have “ lied to the
court”.
75. The Morries opted not to respond to these allegations.
76. In regard to the Morries’ failure to respond to the averments made in the applicants
replying affidavit, the applicants referred, inter alia, to Tantoush v Refugee Appeal Board
& Others9 (and other cases) where the court was held that:
“As these averments were made in the replying affidavit the second respondent strictly
speaking had no entitlement to respond to them and in the normal course they could
not be denied or explained by the respondents. Nevertheless, if the allegations by Ms
Peer were untrue, or if an adequate explanation were possible, leave of the court
could and should have been sought to answer them - see Sigaba v Minister of Defence
and Police and another 1980(3) SA 535 (Tk) at 550F. The respondents did not request
to be given an opportunity to deal with these averments. Their failure to do so tilts the
probabilities towards the applicant’s version that the consultation occurred, that it
lasted 20 minutes and that Ms Bhamjee objected.”
(Emphasis added)
77. This finding was supported by the Constitutional Court in Thint (supra)10 and in the SCA
in Pretoria Portland Cement (supra)11.
78. In response to this argument by the applicants and to substantiate their co -possession
argument, the Morries’ counsel submitted that it is trite that “access is not protected by
way of a spoliation order” and that this is what the applicants are seeking to do.
79. He made reference to the case of De Beer v Zimbali Estate Management Association (Pty)
Ltd.12 and submitted that if the applicants had the sole keys for the house , as they
proclaim, that they would have simply locked the seventh and eighth respondents out of
the house after finding them there.

9 2008 (1) SA 232 (T) at para [51]; Thint v NDPP; Zuma & Another v NDPP & Others 2009 (1) SA 1 (CC) at para
[325]; Pretoria Portland Cement Company Ltd & Another v Competition Commission & Others 2003 (2) SA
385 (SCA) at para [63]
10 At para [325]
11 At para [63]
12 2007 (3) SA 254 (N) at para [33]
20
80. The fact that the applicants could not do so was because they never had the keys to the
house and gate at Willemskraal.
81. I do not agree with this argument. It is not the applicants who are alleging co -possession
of the house at Willemskraal on the basis that they were in possession of the keys to the
house. The applicants’ case is that they have been in peaceful and undisturbed possession
of Willemskraal since 2018 and that they put the lock on the house in 2021. Prior to that,
the house had no keys and the gate had no lock and in fact, the gate still has no lock.
82. This is the basis of the Morries’ argument for why they moved back to Willemskraal and
for why they contend that they have and always had co -possession and that as such, the
applicants could not have been in peaceful and undisturbed possession.
83. I have had regard to the case of De Beer v Zimbali (supra) to which the counsel for the
Morries made reference. It is clear that this case does not support the Morries argument of
co-possession based on allegedly being in possession of the keys to th e house and gate to
Willemskraal.
84. What happened in the case of De Beer v Zimbali (supra) was the following:
84.1 The applicant who was an estate agent who conducted business on the Zimbali
Estate, that she sold property there and she was accordingly is sued with a disc for
the control access to Zimbali which was secured by boom gates.
84.2 The disc was automatically disabled after a given period of time and had to be
programmed from time to time.
84.3 On 23 October 2005, the applicant’s disc was reprogrammed but the following day
it was disabled so the applicant could not gain access to any part of the Zimbali
Estate. She proclaimed that she had exercised peaceful and undisturbed access for
some 2½ years by that time through her attorneys, she demanded t hat her access
be restored, but to no avail.
21
84.4 She contended that the underlying reason for the disablement of the disc was not
relevant for the application and further alleged that the matter was urgent as she
stood to lose a sale of a property in Zimbali worth R15 million.
84.5 She accordingly brought an application for spoliation in the following terms:
84.5.1 That the first respondent was ordered forthwith to restore the applicant’s
unrestricted access to the Zimbali Resort and Residential Developmen t,
reactivating the applicant’s access/security disc as renewed by the first
respondent on 24 October and cancelled on 25 October 2005; and
84.5.2 That the first respondent, or which of the two respondents opposed the
application be ordered to pay the costs.
85. In analysing the applicant’s application in De Beer v Zimbali (supra), the court made
reference to various cases pertaining to spoliation with regards to the facts of that case,
the court found that:
“[33] It is clear that the boom or gate was effectively locked as far as the applicant
was concerned. The disc was in effect a key which would normally make
access to the whole estate possible. The changing of the computer to prevent
the disc
facilitating access amounts to the same as changing the locks.

[34] The only remaining question is whether the applicant had possession of the
whole estate. At one level the simple answer is that she had a key or disc
allowing access to the whole estate. By giving her the disc were the
respondents in effect giving her possession of the whole estate? That they
maintain that she was given access to the whole estate in error or due to some
subterfuge on her part, does not matter.

[35] In Painter v Strauss 1951 (3) SA 307 (O) at page 314 Brink J held that:

‘The mandament van spolie is employed to prevent people from taking the law
into their own hands, and it requires t he property despoiled to be restored as a
preliminary to any enquiry or investigation on the merits of the dispute.'

[36] Van der Merwe in the title Things at para 259 says the following about the
control element where possession is concerned:

'The contr ol element of possession is more closely scrutinised in the case of
acquisition of possession by occupation than by transfer; since transfer need not
necessarily consist in the physical handing over of the thing, but can also take
fictitious forms, like th e handing over of keys ( clavium traditio) or the pointing
out of an object ( traditio longa manu ), less stringent physical requirements are
22
on the whole exacted for acquisition of possession by transfer than by
occupation.'

...

[38] Physical control over a building Van der Merwe points out is exercised by the
person who occupies it (See R v Betelezie 1941 TPD 191) ...

…

[41] What is of crucial importance in this matter is that for someone to exercise
physical control the key must, however, be the only key to the building ; the above
does not apply if the owner or someone else holds a duplicate key. Van der Merwe
quotes as authority for this proposition the case of Shaw v Hendry 1927 CPD
357. In that case the applicant was a builder and alleged that he was in
possession of a house as a result of a builder's lien. The facts revealed that he was
unable to complete certain plumbing work and gave a key to a watchman to
enable another p lumber to have access. A plumber and the respondent's father
thereafter had access and Gardiner JP held that no possession was established.”
86. In that case, the court found that a mandament van spolie is to protect possession and no t
access and that the applicant had failed to establish the sort of possession required for a
mandamant van spolie.
87. It is clear that physical occupation of property is more akin to possession than having a
key to the property.
88. The Morries admit that they have not be en in physical possession of Willemskraal for
over 6 years, since 2018. The fact that they have keys to Willemskraal but no other legal
basis to be there, like the consent from the departmental respondents, equates to no
possession at all.
89. Based on the facts, read with the legal principles, I am not satisfied that the Morries have
co-possession of Willemskraal by virtue of being in possession of a key.
90. Accordingly, this third point in limine also falls to be dismissed.
Requirements for a mandament van spolie
91. It is trite that there are 2 requirements that need to be met in order to obtain the remedy of
mandament van spolie:
23
91.1 The party seeking the remedy must, at the time of the dispossession , have been in
possession of the property; and
91.2 The dispossessor must have wrongfully deprived them of possession without their
consent.
92. It is clear from the facts as set out by the applicant which is supported by the facts and
admissions made by the Morries, that the applicants were in undisturbed and peaceful
possession of Willemskraal till 11 May 2024.
93. It is also common cause that the Morries lack any consent from the Department and that
by moving on to Willemskraal without such consent is unlawful and amounts to taking
the law into their own hands.
94. In Ivanov v North West Gambling Board13, the SCA held that:
“[19] The historic background and the general principles underlying
the mandament van spolie are well established. Spoliation is the wrongful
deprivation of another's right of possession. The aim of spoliation is to
prevent self -help. It seeks to prevent people from taking the law into their
own hands. An applicant upon proof of two requirements is entitled to
a mandament van spolie restoring the status quo ante. The first, is proof
that the applicant was in possession of the spoliated thing. The cause for
possession is irrelevant – that is why possession by a thief is protected. The
second, is the wrongful deprivation of possession. The fact that possession is
wrongful or illegal is irrelevant as that would go to the merits of the
dispute.”
95. The Morries have therefore unlawfully dis placed the applicants of their peaceful and undisturbed
possession of Willemskraal and such status quo ante must be restored with immediate effect.
CONTEMPT OF COURT APPLICATION
96. The relief which the applicants seek against the departmental respondents and the fif th
and sixth respondents is for contempt of the March court order.
97. The fifth and sixth respondents raised three points in limine in their answering papers.

13 2012 (6) SA 67 (SCA) at para [19]
24
98. I address these briefly before setting out the background facts pertaining to the events that
occurred after the March court order and the applicants’ basis for bringing this
application.
Fifth and sixth respondents’ points in limine
99. The fifth and sixth respondents raised the following three points in limine:
99.1 That the Daters Trust of which the fifth respondent is a trustee and the Uzukhanyo
Kuthi Trust of which the sixth respondent is a trustee (“ the Trusts ”) were not
joined to the proceedings and therefore the March court order does not apply to
the Trusts;
99.2 That the fifth and sixth respondents, alternatively the Trusts, are co -possessors of
Dassiesfontein and Dassies 2 respectively; and
99.3 That the March court order is akin to an eviction order.
100. With regards to the Trust:
100.1 This issue of the non -joinder of the trusts were addressed in the application for
spoliation and Salie, J specifically stated that the non-joinder of the trusts was not
fatal to that application given that t he persons who dispossessed the applicants are
the fourth, fifth and sixth respondents; and
100.2 Particularly the Daters Trust, the applicants attached to their replying affidavit a
supporting affidavit of one Mr Jakob Dater s, who is the brother of the fi fth
respondent and a beneficiary of the Daters Trust, wherein he stated categorically
under oath that the fifth respondent is not acting on behalf of the Daters Trust and
that the fifth respondent’s on Dassiesfontein is not authorised by the Trust. The
fifth respondent has not denied the contents of this affidavit.
101. With regards to the issues of co -possession and eviction, these points in limine were
raised in the spoliation application as well . Salie, J considered both of these and found
25
that they had no merit. This is clear from the fact that she granted the spoliation in the
March court order.
102. What is clear from these three points in limine is that the fifth and sixth respondents
impermissibly attempted to lure the court into a rec onsideration of these in respect of
which an order stands and each of these points in limine constitute res judicata.
103. It is common cause that the March court order was never appealed and is, for all intents
and purposes, a final judgment in the spoliation application.
104. It ill behoves the fifth and sixth respondents in this contempt of court a pplication, to re-
engage with the merits of th e spoliation application and proffer the same as defence s in
this application knowing full well that those arguments were unsuccessful in the
spoliation application.
105. Since these issues have already been determined, I will not consider them at all for the
purposes of this application.
BACKGROUND FACTS
Common cause facts
106. On 6 March 2024, the applicants’ attorneys of record being the Legal Resources Centre
(“the LRC ”) sent the judgment and the March court order to Ms Anita Fanini, the
erstwhile attorneys of record for the fifth and sixth respondents wherein she stated in the
accompanying e-mail that the fifth and sixth respondents should remove any belongings
from the houses that they occupy, as they are used for the shepherds when the sheep are
moved to Dassiesfontein and Dassies 2. She made it clear that the applicants did not want
any further allegations that the applicants are disturbing the “ property” of the fifth and
sixth respondents and that the applicants are therefore requesting that the fifth and sixth
respondents remove their “property” as soon as possible.
107. On 7 March 2024, Ms Fanini responded to the LRC’s letter as follows:
26
107.1 They advised the fifth and sixth respondents to remove the locks on the gates to
restore possession to the applicants and that the fifth and sixth respondents had
done so the day before;
107.2 The court did not order fifth and sixth respondents to vacate the farms as this was
not in the ambit of the spoliation order;
107.3 She had advised the fifth and sixth respondents that they retain their right to
remain on the farm and look after their livestock;
107.4 Their presence on the farm will not interfere, in any manner, with the applicants’
possession of the farm;
107.5 The applicants’ instructions that the fifth and sixth respondents vacate the farms
amounts to an impermissible extension of the spoli ation order and is according ly
unlawful and unconstitutional;
107.6 The applicants were never in possession of the houses on the farms and that the
fifth and sixth respondents had always maintained possession of the houses as they
kept keys to the houses;
107.7 That should the applicants need the fifth and sixth respondents to vacate the farms
and their belongings from the farms, that the applicants must approach the court
for an eviction order.
108. In response to this letter, the LRC addressed a further l etter to Fanini Attorneys on 8
March 2024 wherein they addressed a number of the issues in relation to the
implementation of the March court order including the instruction that the keys had been
returned was simply untrue. The LRC responded to the letter as follows:
108.1 That the first and fifth respondents indicat ed that they retained possession of the
properties as they held keys to the homes is an averment that was never raised in
the spoliation application and is being raised after the fact and is di singenuous and
27
done in an effort to frustrate the applicants and the implementation of the March
court order. It also raises completely new allegations to which the applicants were
not able to respond during litigation;
108.2 In addition these averments a re false since the applicants held keys to both the
house in Dassiesfontein and Dassies 2 and it is unclear as to how the fifth and
sixth respondents obtained access to the houses on the property since the
applicants held the set of keys for both properties;
108.3 That the fifth and sixth respondents and their legal representatives understanding
of the legal consequences of a spoliation order is incorrect and in particular, they
made reference to the Constitutional Court case in Ngqukumba v Minister of
Safety and Security & Others14 which held that:
“The essence of the mandament van spolie is the restoration before all else
of unlawfully deprived possession to the possessor. It finds expression in the
maxim spoliatus ante omnia restituendus est (the despoiled person must be
restored to possession before all else). The spoliation order is meant to
prevent the taking of possession otherwise than in accordance with the law.
Its underlying philosophy is that no one should resort to self -help to obtain
or regain possession. The main purpose of the mandament van spolie is to
preserve public order by restraining persons from taking the law into their
own hands and by inducing them to follow due process.”
108.4 This was confirmed by Salie, J in the March court order where she stated that:
“As a possessory remedy, it is exclusively directed at restoring the factual
position as it was before the dispossession , which is determined separately
and distinct from an investigation into the rights of the parties.”
108.5 Prior to the applicants’ dispossession, neither the fifth nor sixth respondents were
living on the farm. They had not been there since at least 2017 and 2019
respectively. The spoliation order has the effect of restoring the situation as it was
prior to 17 January and 7 February 2024. At that point, both the fifth and sixth
respondents did not live on Dassiesfontein or Dassies 2 and the spoliation o rder
restores the possession to the applicants without the presence of the fifth and sixth
respondents on the farms;

14 2014 (5) SA 112 (CC) at [10]
28
108.6 In addition, the fifth and sixth respondents are not “ occupiers” for the purposes of
ESTA.
109. On the same day, Ms Fanini responded to say that the correspondence was received and
that she would take instructions and revert. The applicants never heard back from her.
110. On 15 March 2024, the LRC wrote to the State Attorney on behalf of the departmental
respondents advising them that the fifth and sixth respondents have continued to stay on
the farms, and that in fact the sixth respondent has brought her children with her as well.
They further sought clarity on what the Department, as the own er of the land, intended on
doing about the fifth and sixth respondents ' continued occupation of Dassiesfontein and
Dassies 2 given the terms of the March court order.
111. They also sought clarity on the policy in terms of which the Department had decided to
allocate the land to fifth and sixth respondents as well as the terms of such allocation. In
addition, the LRC indicated that the applicants intended on review ing and setting aside
the decision to allocate the farms to the fifth and sixth respondents.
112. On 19 March 2024, Mr Golding of the State Attorney responded and noted that the State
Attorney wa s taking instructions from the d epartmental respondents regarding the fifth
and sixth respondents’ continued occupation of Dassiesfontein and Dassies 2 a nd he
sought an indulgence to respond by 2 April 2024.
113. On 8 April 2024, the LRC received a further letter from the State Attorney wherein he
stated the following:
“2. We place on record that the first to fourth respondents accept the court order
and d o not condone the fifth and sixth respondents, Hendrik Booysen and
Lucy Nduku respectively, to remain on the farms . The first to fourth
respondents accept that Booysen and Ms Nduku are in contravention of the
court order and first to fourth respondents have not agreed to this or
consented to their continued occupation of the property.
3. The Department is in the process of seeking to address the situation.”
114. The Department took no further steps to address the situation and the fifth and sixth
respondents continued to stay on the farm.
29
115. On 15 April 2024, the LRC again wrote to the State Attorney seeking clarity as to when
the Department would be taking step s against the fifth and sixth respondents, given how
intolerable the situation had become on the farm.
116. In particular, the LRC pointed out that the fifth and sixth respondents had commenced
with farming operations on the land and that the sixth respond ent had bought goats onto
Dassies 2 over the Easter weekend and was keeping these goats in the sheering shed. The
LRC advised the Department that the presence of goats in the sheering shed interferes
with Nuveld’s business , and could have a catastrophic i mpact on their business. In
particular, the LRC stated that the impact would be as follows:
116.1 Nuveld has a Responsible Wool Standards (RWS) certification and that the RWS
annual audit was completed during April and May.
116.2 The presence of goat hair s in the wool would result in Nuveld losing its RWS
certification which meant that the value of the wool would drop between 8 to 15%.
This was because RWS certified wool is classed higher and one can fetch a higher
price. Without it, Nuveld would incur financial losses.
116.3 The loss of this classification would cause financial loss to Nuveld and impact on
its sustainability and its budget.
116.4 In addition, the goats are kept by the sixth respondent in unsanitary conditions
which can cause the outbreak of parasites and illnesses that can affect Nuveld
sheep. Nuveld has no control over the sixth respondent’s goats and cannot treat
them. Should they cause illness amongst Nuveld sheep, it can be financial ly
devastating for the company.
117. The LRC again advised the State Attorney that the Department needed to take steps to
remove the fifth and sixth respondents from the farms as the Department is the owner and
are responsible for placing them on the farms in the first place. The LRC gave the
30
Department until 16 April 2024 to advise when they would remove the fifth and sixth
respondents from the farm.
118. On 15 April 2024:
118.1 The State Attorney addressed an e-mail advising that they were taking instructions
and would revert. No such response was forthcoming from the State Attorney.
118.2 The LRC wrote a n urgent letter to Ms Fanini in which they noted that Ms Fanini
never revert ed to previous correspondence and that further developments had
taken place over the Easter weekend and demanded that the fifth and sixth
respondents remove their animals off the farm and vacate the houses by 17 April
2024, failing which the applicants wou ld approach the court to hold them in
contempt of the March court order.
118.3 The first applicant contacted one Mr Andr ey Booysen (“Mr Booysen”), the then
Acting Chief Director in the Department to ask what he would be doing about the
fifth and sixth respondents. Mr Booysen advised the first applicant that during the
week of 15 April 2024, he was planning on meeting with the fourth applicant, Mr
Mbekeni, and some other Department officials and that he was going to instruct
Mr Mbekeni to remove the fifth and sixth respondents from the farm.
119. According to the d epartmental respondents, such a meeting never took place between Mr
Booysen and Mr Mbekeni.
120. On 17 April 2024, Ms Fanini responded to the LRC indicating that she no longer
represented the fifth and sixth respondents and that the correspondence should be directed
to the fifth and sixth respondents directly. Ms Fanini noted that the fifth and sixth
respondents were made aware of the court order and the implications of same were fully
explained to them.
121. On 19 April 2024, the applicant found out that Mr Booysen had been removed as the
Acting Chief Director and been replaced with one Ms Thoko Xaso.
31
122. Instead of complying with the March court order, the sixth respondent , who initially
brought 6 goats, now brought a further 24 sheep onto Dassies 2.
123. The LRC instructed the Sheriff of Beaufort West to serve on the fifth and sixth
respondents the following:
123.1 Copies of the March court order;
123.2 Letters which the LRC addressed to the fifth and sixth respondents regarding their
continued occupation of Dassiesfontein and Dassies 2 being in contravention of
the March court order wherein they also advised the sixth respondent of the
significant risk her goats pose to the quality of the applicants’ sheep;
123.3 A copy of the department’s letter of 8 April 2024 advising that the department
does not condone their continued occupation of the farms and that it does not
agree or consent to them being on the farm and that the LRC demanded that they
leave the farms by Wednesday, 8 May 2024 failing which the applicants would
approach the court to hold them in contempt of the March court order.
124. On 30 April 2024, the LRC again wrote to the State Attorney advising that the fifth and
sixth respondents were still on the farm and were actively farming and putting the
applicants’ business at risk, and that the State Attorney was again advised that the
Department as the owner of the land was responsible for taking immediate steps to
remove the fifth and sixth respondents from the farms. Reference was made to the
assurances given by the Department to the applicants on 8 April 2024, as they were in the
process of addressing the situation and th at should steps not be taken by 8 May 2024 for
the removal of the fifth and sixth respondents from the farms, the applicants would
approach the court to have the first to fourth respondents held in contempt.
125. No response was received to the LRC’s lette rs nor was there any indication that the
Department intended to “ address the situation ”. On the contrary, on Friday , 10 May
32
2024, Mr Mapona of the department came to Dassies 2 and delivered some wheelbarrows
and rakes for the sixth respondent to assist her with planting vegetables on the farm.
126. Earlier in that week, the first applicant had contacted Ms Xaso to find out what the
Department was doing about enforcing the March court order as promised. On the
evening of 30 April 2024, Ms Xaso responded to the first applicant and advised that she
had spoken to the legal officer and was advised to request that the applicants ask their
attorneys to engage with the attorneys of the Department. This was because the matter
was in court and there was a ruling in respect of the people on the farm.
127. As a result, the applicants brought this application.
Disputed facts
128. The following are disputed facts arising from the papers:
128.1 That the departmental respondents have not violated paragraph (i) of the Marc h
court order.
128.2 That the Department has no obligation to restore possession of Dassiesfontein and
Dassies 2 to the applicant.
128.3 That it is fifth and sixth respondents who are in occupation of Dassiesfontein and
Dassies 2 and that the obligation re sts on them to restore these 2 farms to the
applicants.
128.4 It is not the role of the departmental respondents to enforce the March court order.
128.5 The March court order does not direct the departmental respondents to launch
eviction proceedings against the fifth and sixth respondents.
33
ISSUE FOR DETERMINATION
129. The issue for determination under this heading is:
129.1 Whether the departmental respondents and the fifth and sixth respondents are in
contempt for failing to comply with the March court order compelling them to
restore the peaceful and undisturbed possession of Dassiesfontein and Dassies 2 to
the applicant with immediate effect.
APPLICABLE LEGAL PRINCIPLES
130. The main issue to determine under the heading of contempt of court is whether the failure
to comply with the March court order by the first to sixth respondents was wilful or mala
fides.
131. In Victoria Park (supra)15, the court set out the legal principles pertaining to contempt of
court as follows (footnotes omitted):
[15] Contempt of court is a criminal offence . It is committed, generally speaking,
when a person unlawfully and intentionally violates the ‘ dignity, repute or
authority of a judicial body’ or interferes in the administration of justice in a
matter pending before such a body . It serves three important purposes, namely
to protect the rights of everyone to fair trials, to maintain public confiden ce in
the judicial arm of government and to uphold the integrity of orders of courts.

[16] Contempt of court may take a number of forms, being descriptive of ‘a broad
variety of offences that have little in common with one another save that they all
relate, in one way or another, to the administration of justice’. As a result, a
number of categorisations have been developed to conveniently pigeon-hole the
various manifestations of this offence. The form of contempt of court that is
involved in this matter is usually referred to as contempt ex facie curiae because
it is not alleged to have been committed during the course of judicial
proceedings. It is also, rather inaccurately, referred to as civil contempt
because the committal of the respondents has been sought by a party to civil
proceedings on notice of motion, and not by way of a charge at the instance of
the Director of Public Prosecutions. Thirdly, it takes the form of a failure or a
refusal to obey a court order, as opposed to such forms of contempt as
scandalising the court or publishing material that tends to prejudice pending
judicial proceedings.

[17] Although usually brought by way of notice of motion, ‘civil’ contempt cases
remain criminal in nature. This has led to a re -assessment of the issue of onus.
In Uncedo Taxi Service Association v Maninjwa and others . Pickering J held
that the fundamental right to a fair criminal trial guaranteed by s35(3) of the

15 At paras [15] to [23]
34
Constitution requires that, in order for an applicant in contempt proceedings to
succeed, he or she must prove the elements of the offence beyond reasonable
doubt. I am in agreement with this statement of the law.

[18] The elements of the offence that the applicant must establish are set out and
discussed as follows by Baker AJ in Consolidated Fish Distributors (Pty) Ltd v
Zive and others:

‘Contempt of Court, in the present context, means the deliberate, intentional (i.e.
wilful), disobedience of an order granted by a Court of compete nt jurisdiction. … In
Southey v Southey , 1907 E.D.C. 133 at p. 137, it was said that applicant for an
attachment had to show a wilful and material failure to comply with the reasonable
construction of the order. The requirement of materiality is hardly eve r mentioned in
the cases, however, probably for the reason that in 99 per cent of these cases the
whole order was disobeyed, which is obviously a “ material” non-compliance. It is
reasonable to suggest that where most of the order has been complied with and the
non-compliance is in respect of some minor matter only, the Court would take the
substantial compliance into account, and would not commit for the minor non -
compliance.

An applicant for committal needs to show -

(a) that an order was granted against respondent; and
(b) that respondent was either served with the order … or was informed of the
grant of the order against him and could have no reasonable ground for
disbelieving the information; and
(c) that respondent has either disobeyed it or has neglected to comply with it.
(In this instance it is undisputed that the order was duly served).

Once it is shown that an order was granted and that respondent has disobeyed or
neglected to comply with it, wi lfulness will normally be inferred … and the onus
will then be on respondent to rebut the inference of wilfulness on a balance of
probabilities.’

[19] The principal purpose of contempt of court proceedings when an order has
been disobeyed has been held to be ‘the imposition of a penalty in order to
vindicate the Court's honour consequent upon the disregard of its order … and
to compel the performance thereof’. This purpose must, however, be viewed in a
wider context. The Constitution, in which the judicial authority of the State is
sourced, is founded, inter alia, on constitutional supremacy and the rule of law.

At the heart of the rule of law is the idea, foundational in civilised society, that
the law must be administered by independent courts and that, as Dicey
expressed it, ‘no man is above the law’ and ‘every man, whatever be his rank or
condition, is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals’.

[20] As part of what may be termed a parcel of kindred fundamental rights designed
to give expression to the founding value of the rule of law, s34 of the
Constitution provides that ‘[e]veryone has the right to have any dispute that can
be resolved by the application of law decided in a fair public hearing before a
court or, where appropriate, another independent and impartial tribunal or
forum’. In Chief Lesapo v North West Agricultural Bank and Another,
Mokgoro J set out the purpose of s34 and its relationship to the rule of law. She
held:

‘A trial or hearing before a court or tribunal is not an end in itself. It is a means of
determining whether a legal obligation exists and whether the coercive power of the
State can be invoked to enforce an obligation, or prevent an unlawful act being
committed. It serves other purposes as well, including that of institutionalising the
resolution of disputes, and preventing remedies being sought through self -help. No
35
one is entitled to take the law into her or his own hands. Self -help, in this sense, is
inimical to a society in which the rule of law prevails, as envisioned by s 1(c) of our
Constitution. …Taking th e law into one's own hands is thus inconsistent with the
fundamental principles of our law.’

[21] The learned judge proceeded to hold that an ‘important purpose of section 34 is
to guarantee the protection of the judicial process to persons who have disputes
that can be resolved by law’ and that the right of access to court is
‘foundational to the stability of an orderly society. It ensures the peaceful,
regulated and institutionalised mechanisms to resolve disputes, without
resorting to self -help. The rig ht of access to court is a bulwark against
vigilantism, and the chaos and anarchy which it causes. Construed in this
context of the rule of law and the principle against self -help in particular,
access to court is indeed of cardinal importance’.

[22] The right guaranteed s34 would be rendered meaningless if court orders could
be ignored with impunity: the underlying purposes of the right -- and
particularly that of avoidance of self -help -- would be undermined if litigants
could decide which orders they wished to obey and which they wished to ignore.
The Constitution recognises this in s165, the section that creates the judicial
authority. Section 165(3) provides that ‘[n]o person or organ of state may
interfere with the functioning of the courts’ and s165( 5) provides that a any
order issued by a court ‘binds all persons to whom and organs of state to which
it applies’.

[23] When viewed in the constitutional context that I have sketched above, it is clear
that contempt of court is not merely a mechanism for the enforcement of court
orders. The jurisdiction of the superior courts to commit recalcitrant litigants
for contempt of court when they fail or refuse to obey court orders has at its
heart the very effectiveness an d legitimacy of the judicial system . In this sense,
contempt of court must be viewed in a particularly serious light in a
constitutional state such as ours that is based on the democratic values listed in
s1 of the Constitution, particularly those of const itutional supremacy and the
rule of law. Contempt of court is not merely a means by which a frustrated
successful litigant is able to force his or her opponent to obey a court order.
Whenever a litigant fails or refuses to obey a court order, he or she the reby
undermines the Constitution. That, in turn, means that the court called upon to
commit such a litigant for his or her contempt is not only dealing with the
individual interest of the frustrated successful litigant but also, as importantly,
acting as g uardian of the public interest. The contempt jurisdiction, whatever
the situation may have been before 27 April 1994, now also involves the
vindication of the Constitution. This principle was, it appears to me, what Kirk -
Cohen J had in mind when he held, in Federation of Governing Bodies of South
African Schools (Gauteng) v MEC for Education , Gauteng, that contempt of
court was an issue ‘between the Court and the party who has not complied with
a mandatory order of Court’.” (Emphasis added)
132. In Fakie N.O v CCII Systems (Pty) Ltd16, the SCA stated the following:
“[9] The test for when disobedience of a civil order constitutes contempt has come to
be stated as whether the breach was committed ‘deliberately and mala fide’. A
deliberate disregard is not enough, since the non -complier may genuinely,
albeit mistakenly, believe him or herself entitled to act in the way claimed to
constitute the contempt. In such a case good faith avoids the infraction. Even a

16 2006 (4) SA 326 (SCA) at para [9]
36
refusal to comply that is objectively unreasonable may be bona fide (though
unreasonableness could evidence lack of good faith).” (Emphasis added)
133. The criminal standard of proof, namely proof beyond a reasonable doubt, applies. The
applicant must show:
133.1 That the respondent was served with or otherwise informed
133.2 of an existing court order granted against him;
133.3 and has either ignored or disobeyed it.17
134. To avoid being convicted, the respondent must establish a reasonable doubt as to whether
his failure to comply was wilful and mala fide. In Fakie (supra) the SCA said:
“[23] It should be noted that developing the common law thus does not require the
prosecution to lead evidence as to the accused’s state of mind or motive: once
the three requisites mentioned have been proved, in the absence of evidence
raising a reasonable doubt as to whether the accused acted wilfully and mala
fide, all the requisites of the offence will have been established. What is
changed is that the accused no longer bears a legal burden to disprove
wilfulness and mala fides on a balance of probabilities, but to avoid conviction
need only lead evidence that establishes a reasonable doubt.”
135. Once the applicants have pro ved the order, service or notice, and non -compliance, the
respondents bear an evidential burden in relation to wilfulness and mala fides. Once these
elements are established, wilfulness and mala fides are presumed and the respondents bear
an evidentiary b urden to establish a reasonable doubt. Should the respondents fail to
discharge this burden, contempt will have been established18.
136. The standard of proof must be applied in accordance with the purpose sought to be
achieved, that is, the consequences of the various remedies 19, the civil contempt remedies
of committal or a fine have material consequences on an individual’s freedom and
security of the person, and where these remedies are sought a criminal standard of proof
(beyond a reasonable doubt) applies.

17 Fakie (supra) at para [6]
18 Secretary, Judicial Commission of Enquiry into Allegations of State Capture v Zuma & Others 2021 (5) SA 327
(CC) at para [37]
19 Matjhabeng Local Municipality v Eskom Holdings Ltd & Others 2018 (1) SA (CC) at para [67]
37
137. On the other hand, where civil contempt remedies such as declaratory relief, mandamus or
a structural interdict are sought, these do not have the consequence of depriving an
individual of their freedom and security of a person and therefore the civil standard of
proof (balance of probabilities) applies.
THE FIRST TO SIXTH RESPONDENTS’ DEFENCES TO THE CONTEMPT OF
COURT RELIEF SOUGHT BY THE APPLICANT
Departmental respondents
138. The defences raised by the departmental respondents are essentially the disputed facts that
are set out hereinabove.
139. Further to those defences, the departmental respondents alleged the following:
139.1 Subsequent to the letter of 8 April 2024, the Department consulted with its legal
team regarding the ambit of the March court order, whereupon the Departm ent
ascertained that it had not been directed to launch eviction proceedings against the
fifth and sixth respondents and accordingly did not have to take any further steps;
139.2 Furthermore, the department enquired from the fifth and sixth respondents as to
whether they had granted access to the applicants to Dassiesfontein and Dassies 2,
which they answering in the affirmative.
139.3 In the departmental respondents’ heads of argument, they submit the following:
139.3.1 That paragraph (i) of the March court order did not impose obligations on
the departmental respondents. Given that it was the fifth and sixth
respondents who are in possession of Dassiesfontein and Dassies 2, the
departmental respondents understood, from a clear reading of the wording
of paragraph (i), that it was directed at the possessors, on whom the court
imposed the obligation to restore possession ante omnia to the applicants
with immediate effect.
38
139.3.2 That even if the court were to find that paragraph (i) of the March court
order imposed an obligation on the departmental respondents to take
positive steps to ensure that the fifth and sixth respondents vacated the
property (and essentially to evict them from the property, which the
departmental respondents submitte d was not the case given the fact that
the departmental respondents were not in possession of the property ), and
that the departmental respondents did not comply with this obligation,
their submission was that the requisites of wilfulness and mala fides have
not been established by the evidence that is before the court.
139.3.3 Subsequent to the letter of 8 April 2024, the departmental respondents
consulted with their legal team regarding the ambit of the March court
order, whereupon the Department ascertained that it had not been directed
to launch eviction proceedings against the fifth and sixth respondents, and
accordingly did not have to take further steps.
140. During oral argument, counsel for the departmental respondents reiterated their argument
on the papers and submitted further that i n order to determine whether the departmental
respondents are in contempt of the Ma rch court order, that only their conduct subsequent
to the March court order must be assessed and considered , and not what transpired prior
to the March court order.
141. I am in agreement with this submission.
142. In order to determine whether there is any wilfulness or mala fides for the purposes of the
relief sought, I set out hereunder the conduct of the departmental respondents as it appears
from their own answering affidavit:
142.1 Notwithstanding what the department stated in the letter of 8 April 2024, the
departmental respondents never advised the fifth and sixth respondents of the
revocation of the Department’s consent for the fifth and sixth respondents to
continue to occupy Dassiesfontein and Dassies 2.
39
142.2 All the departmental respondents did was enquire from the fifth and sixth
respondents whether they had granted access to the applicants to Dassiesfontein
and Dassies 2.
142.3 Despite advising the applicants on two occasions that it would take steps to
address the situation relating to th e fifth and sixth respondents’ continued
occupation of Dassiesfontein and Dassies 2, no steps were taken and the applicants
were never advised that the departmental respondents had no intention to take any
steps
142.4 Given that they revoked their consent for the continued occupation of
Dassiesfontein and Dassies 2, i nstead of notifying the fifth and sixth respondents
that they should vacate both farms, the departmental employee, Mr Mapona, was
delivering wheelbarrows and rakes to assist the sixth responden t in planting
vegetables on the farm. As pointed out by the applicants’ counsel, th e message
which this delivered to the sixth respondent is that she was allowed to continue
farming at Dassies 2 with the blessings of the department.
142.5 The explanation for Mr Mapona’s conduct was that:
142.5.1The sixth respondent is a widow and the sole breadwinner feeding a family
of 11 and that Mr Mapona, whose directorate is responsible for food
security, was simply assisting the sixth respondent.
142.5.2As well intentioned as the assistance was by Mr Mapona, he may not have
been prudent in the circumstances; and
142.5.3They would instruct Mr Mapona and other officials in the Department to
ensure that this was not repeated.
143. This explanation regarding Mr Mapona is nothing short of astonishing. At no stage did
the departmental respondents consider it necessary to explain to the court how or why this
conduct would not be perceived by the sixth respondent as the department’s “continued
40
consent” for her to continue to occupy Dassies 2 in direct contravention of the March
court order and their alleged revocation of their consent.
144. The March court order was clear as to what is required by the departmental respondents in
order to comply. However, instead of taking positive steps to comply with the March
court order, the departmental respondents argued that, as far as they have been legally
advised, paragraph (i) of the March court was “not applicable to them since they are not
in possession of Dassiesfontein and Dassies 2”.
145. In fact, t he entire tone of the answering affidavit is dismissive of the applicants’ claims
that the departmental respondents had a positive duty in terms of the March court order to
restore the applicants peaceful and undisturbed possession of Dassiesfontein and Dassies
2 and that they have failed to comply therewith.
146. The department is the rightful o wner of Dassiesfontein and Dassies 2 and th at it was the
departmental respondents who gave the fifth and sixth respondents consent to occupy
these farms and yet, they submitted that nothing was expected of them in terms of
paragraph (i) of the March court order.
147. The conduct of the departmental respondents after the March court ord er, on their own
version, is demonstrative of wilfulness and mala fides on their part.
148. Their attempt to distance themselves from the unlawful conduct of the fifth and sixth
respondents by their continued occupation of Dassiesfontein and Dassies 2 , which
conduct and occupation was instigated by the departmental respondents , also speaks
directly to wilfulness and mala fides on the part of the departmental respondents. The
departmental respondents had a legal responsibility to comply with the March c ourt order
and reverse their actions that took place on 17 January and 7 February 2024. They did not
do so.
41
149. And yet, the departmental respondents contended that in the event that the court finds that
they have not complied with the March court order, that such non -compliance is not
wilful or mala fides given the legal advice they received with regards to the eviction issue.
150. I disagree with this contention.
151. The conduct of the departmental respondents is clearly wilful and mala fides and I say this
for the following reasons:
151.1 They failed to inform the fifth and sixth respondents, in writing, on 4 March 2024 ,
that they have revoked their consent for the fifth an d sixth respondents from
occupying Dassiesfontein and Dassies 2, as required by the March court order.
151.2 They failed to instruct the fifth and sixth respondents that since such consent has
been revoked, that they are no longer in lawful occupation of D assiesfontein and
Dassies 2 and that they are, for all intents and purposes, unlawful occupiers.
151.3 They failed to instruct the fifth and sixth respondents that should they not vacate
Dassiesfontein and Dassies 2, given that the department is the owner of these
farms and in order to restore these to the applicant in compliance with the March
court order, the department will be forced to bring eviction proceedings.
151.4 They failed to provide the fifth and sixth respondents with a date by which to
vacate.
151.5 Instead, the departmental respondents, via their employees, continue to assist the
fifth and sixth respondents, which is a clear indication that there, in fact, was no
revocation of the department’s consent.
151.6 That this conduct also flies in the face of the March court order.
152. To summarise:
42
152.1 The applicants were in peaceful and undisturbed possession since 2017 until 17
January and 7 February 2024.
152.2 The departmental respondents, by their conduct , dispossessed the applicants from
Dassiesfontein and Dassies 2.
152.3 The departmental respondents gave the fifth and sixth respondents consent to
move onto Dassiesfontein and Dassies 2 and even assisted them in moving on to
the farms.
152.4 Had the departmental respondents not granted consent to the fifth and sixth
respondents, they would not have occupied Dassiesfontein and Dassies 2.
152.5 If the departmental respondents had genuinely revoked their consent, the fifth and
sixth respondents would possibly feel compelled to vacate Dassiesfontein and
Dassies 2.
152.6 The conduct of the departmental respondents towards the March court order is
such, that it encourages the fifth and sixth respondents to feel brazen enough to
ignore the March court order as well.
153. The departmental respondents also submitted onus of “beyond a reasonable doubt ” is a
strict one and that the applicants ha ve not discharged but rather, the departmental
respondents have created the necessary reasonable doubt to avert a co ntempt of court
order being granted against them.
154. From the plain facts which appear above , I am not convinced that the d epartmental
respondents’ have created any reasonable doubt at all to avert the contempt of court relief.
155. In my view, the depa rtmental respondents are aware of the March court orde r and that
they have not wilfully complied therewith and their failure to do so is mala fides.
Fifth and sixth respondents
43
156. The defences raised by the fifth and sixth respondents for the contempt application are the
following:
156.1 That they act in their fiduciary capacities as trustees of their respective trusts.
156.2 That the March court order does not apply to them personally as they act on behalf
of the trust to whom the department granted its consent.
156.3 Since the granting of the March court order, that they granted to the applicants
access to Dassiesfontein and Dassies 2.
156.4 That the sixth respondent has brought goats and sheep onto Dassies 2.
156.5 That the fifth and sixth respondents will only move their property from
Dassiesfontein and Dassies 2, upon receipt of an eviction order properly granted
by a court and ordering them to do so; and giving them an alternative farm for
their property.
157. The counsel for the fifth and sixth respondents argued that by granting applicants access
to Dassiesfontein and Dassies 2, as they were apparently advised by the departmental
respondents to do, that they had complied with the court order and are therefore not in
contravention thereof and any alleged non -compliance on their part is not wilful or mala
fide.
158. I have a fundamental difficulty with the submissions made by the fifth and sixth
respondents’ in their answering papers, as well as in their heads of argument and during
oral argument, for the following reasons:
158.1 First, the March court order applies to the fifth and sixth respondents directly and
not to their respective trusts. The trusts do not feature in this application at all and
any reference to these trusts by the fifth and sixth respondents have been
disregarded.
44
158.2 Second, according to Mr Jakob Daters, the fifth respondent’s brother, the Daters
Trust has not authorised the fifth r espondent to occupy Dassiesfontein and that he
is, accordingly, not acting on behalf of the Daters trust.
158.3 Third, even though t he fifth and sixth respondents did grant the applicants access
to Dassiesfontein and Dassies 2 by removing the locks from the gates thereto, this
is not what was contemplated in the March court order.
158.4 That prior to the fifth and sixth respondents’ occupation of Dassiesfontein and
Dassies 2 on 17 January and 7 February 2024 , the applicants had full possession
and occupation of both these farms and were conducting the wool business from
all five Plateau farms.
158.5 The only way for the status quo to be restored to the applicants in terms of
paragraph (i) of the March court order, is for the fifth and sixth respondents and
their animals to vacate the farms.
158.6 Access to Dassiesfontein by the applicants does not constitute peaceful and
undisturbed possession, because the applicants’ sheep can not graze on the
Dassiesfontein Farm. The reason for this is because the fifth respondent has full
access to the sheep and has openly and admittedly threatened that he will slaughter
some of the sheep as compensation for animals that were allegedly stolen from
him. This is hardly peaceful and undisturbed possession as contemplated by the
March court order.
158.7 As for Dassies 2, applicants utilised the sheering shed on Dassies 2 prior to the
occupation thereof by the sixth respondent and given that the si xth respondent’s
goats and sheep are in that area, this would contaminate the wool of the
applicants’ sheep if they came into contact with them, thereby causing financial
losses to the applicants, as well as having their RWS certification revoked.
45
158.8 The applicants used both houses on Dassiesfontein and Dassies 2 for their
shepherds to stay in when the sheep were in those camps. Whilst the fifth and
sixth respondents remain on the farms, the applicants are unable to do so.
159. The defences put up by the fifth and sixth respondents are also somewhat disconcerting in
that fifth and sixth respondents are clearly aware of the March court order and what the
consequences of the court order are.
160. This is clear from:
160.1 The last letter from the fifth a nd sixth respondents erstwhile attorney advising the
applicants that the fifth and sixth respondents were fully informed of the
consequences of the March court order; and
160.2 The fifth and sixth respondents’ clear averments that they have no intention to
vacate Dassiesfontein and Dassies 2.
160.3 Their misplaced reliance on their alleged fiduciary duties owed to their respective
trusts which is without any legal foundation.
161. The fifth and sixth respondents have also made it clear that unless there is an eviction
order and they are granted alternative farmland , they will not vacate Dassiesfontein and
Dassies 2. (Emphasis added)
162. In light of the facts that arise from the fifth and sixth respondents own papers, I cannot
accept the submission by their counsel that there has been compliance with the court order
and that in the event that there is any non-compliance with the court order , such conduct
is not wilful or mala fides.
163. Like the departmental respondents, the fifth and sixth r espondents are well aware of the
March court order and the y have wilfully not complied therewith and such conduct is
mala fides.
COSTS
46
Condonation application
164. Regarding the costs in respect of the condonation application, f urther to what I state
above, it is trite that condonation is an indulgence sought by a party from the court and in
for such an indulgence to be granted, the party seeking the indulgence has to show that
there is no prejudice to the other parties and that if there is prejudice, it is not such that it
cannot be cured with an appropriate costs order.
165. Since the departmental respondents were rather late in filing their answering affidavit,
even though their explanation therefor e was adequate, it still plac ed the applicants under
pressure to file replying affidavits and heads of argument which had a domino effect
where the court received voluminous sets of papers very late the day before the hearing.
166. Under these circumstances, the depar tmental respondents should bear the costs of the
applicant arising from the late filing of the answering affidavit.
The withdrawal of relief by the applicant
167. During the hearing of the application, the applicants mentioned that the relief which they
seek in paragraph 2.1 of the Notice of Motion, is for a declarator that the first to fourth
respondents are in contempt of both paragraphs (i) and (ii) of the March court order.
168. They no longer seek the relief insofar as it pertains to paragraph (ii) of the March court
order since it was admitted in the departmental respondents’ answering affidavit that the
seventh and eighth respondents did not occupy Willemskraal with the Depart ment’s
consent.
169. As regards to the issue of costs in this regard, the applicant places the following
undisputed facts before the court:
169.1 On 20 February 2023, the fourth respondent, Mr Mbekeni, asked the applicants to
agree that, inter alia, Willemskraal be given to other beneficiaries;
47
169.2 On 11 May 2024, the Morries advised the first applicant that the Department had
given them Willemskraal and that they had a lease agreement with the
Department;
169.3 When the applicant called the Legal Admini stration Office of the Department, Mr
Vonk, to enquire about the Morries’ presence on Willemskraal, Mr Vonk simply
said “Sorry bru, speak to your lawyers”;
169.4 The LRC, on 15 May 2024 addressed a letter to the State Attorney advising the
State Attorney of what the Morries and Mr Vonk had stated and specifically stated
that the Department was in breach of the March court order in that it had allocated
Willemskraal to the Morries;
169.5 Neither the Department nor the State Attorney responded to the LRC’s letter;
169.6 The first time the applicants were advised that the Department had not in fact
allocated Willemskraal to the Morries was when the answering affidavit was
received on 7 June 2024.
170. In light of the common cause facts, the applicants contend that they can hardly be faulted
for genuinely believing that the Department had allocated Willemskraal to the Morries in
breach of the March court order.
171. Had the State Attorney or the department itself simply afforded the applicants the
courtesy of a response to the letter of 15 May 2024 and corrected the applicants’ genuine
but mistaken belief as to how the Morries came to be at Willemskraal, the applicants
would not have sought the relief in paragraph 2.1 of the Notice of Motion insofar as it
relates to paragraph (ii) of the March court order.
172. The applicants submit further that there is no reasonable basis upon which the
departmental respondents can seek a cost order against the applicants in regard to this
relief.
48
173. I am satisfied that the departmental respondents could have advised the applicants sooner
than 6 June 2024 that they had not given the Morries consent to occupy Willemskraal.
This would have alleviated unnecessary relief which the applicants sought in the notice of
motion.
174. Accordingly, I am satisfied that each party can pay their own costs in that regard.
CONCLUSION
175. The relief which the applicants seek in paragraphs 3, 4, 5, 7 and 8 of the Notice of Motion
would, in my view, amount to a backdoor eviction, and I am accor dingly not inclined to
grant the relief set out in these paragraphs.
176. However, I am satisfied that the applicants have made out a case for the relief which they
seek at paragraphs 1, 2 and 6 of the Notice of Motion.
177. In applying the legal principle s pertaining to a mandament van spolie, I am satisfied that
the applicants have satisfied the requirements therefor e and have made out a case for the
relief which the y seek against the Morries to restore the applicants’ peaceful and
undisturbed possession of the farm Willemskraal with immediate effect.
178. In applying the reasoning in Fakie and the further case law which refer to the legal
principles pertaining to the contempt of court applications, I am also satisfied that the
applicant has proved beyond a reasonable doubt that:
178.1 The departmental respondents and the fifth and sixth respondents were served with
the March court order granted against them and they ignored and/or disobeyed the
March court order.
179. On the issue of costs, I see no reason why the costs should not follow the result.
180. Accordingly, I make the following order:
First to sixth respondents:
49
(a) The fifth and sixth respondents’ points in limine are all dismissed.
(b) It is declared that the first to sixth respondents are in contempt of paragraph (i) of
this court’s order dated 4 March 2024 granted by Salie, J.
(c) The first to sixth respondents are ordered to comply with this court’s order dated 4
March 2024 within thirty (30) days of this order.
(d) Failing compliance with this order , the first respondent, Ms Angela Thoko Didiza,
the second respondent, Mr Thokozile Xaso, the third respondent, Mr Terries
Ndove, the fourth respondent, Mr Lubabalo Mbekeni, the fifth respondent, Mr
Hendrik Booysen and the sixth respondent Ms Lucy Nduku, will be committed to
prison for a period of thirty days.
(e) That the first to sixth respondents are ordered to pay the costs of the application
jointly and severally, the one paying the other to be absolved, on a party and party
Scale C;
(f) The first to fourth respondents will pay the costs of the condonation application on
a party and party scale B;
(g) That the costs pertaining to withdrawal of paragra ph 2.1 of the Notice of Motion
insofar as it pertains to the first to fourths respondents’ contempt of paragraph (ii)
of this court’s order dated 4 March 2024, will be borne by each party.
(h) That the applicants’ peaceful and undisturbed possession of Far m Willemskraal:
Portion 1 of the Farm Bronkers Valei No. 76 wi th title deed number T6[…] is
restored to the applicants ante omnia with immediate effect by the seventh and
eighth respondents;
(i) That the seventh and eighth respondents will pay the costs of this application
jointly and severally, the one paying the other to be absolv ed on a party and party
Scale B.
50


_________________________
The Hon. Ms Acting Justice Mahomed
Of the Western Cape High Court
APPEARANCES:

Applicant’s Counsel: Adv M Adhikari
Instructed by: The Legal Resources Centre

First to fourth Respondents’ Counsel: Adv N Mayosi (with Adv K Ngqata)
Instructed by: The State Attorney, Cape Town

Fifth to Eighth Respondent’s Counsel: Adv M Titus
Instructed by: Wonga and Associates